TERRY FOUCHA, PETITIONER v. LOUISIANA

on writ of certiorari to the supreme court
of louisiana

[May 18, 1992]

Justice Thomas , with whom The Chief Justice and

The Court errs, in large part, because it fails to examine
in detail the challenged statutory scheme and its application in this case. Under Louisiana law, a verdict of "not
guilty by reason of insanity" differs significantly from a
verdict of "not guilty." A simple verdict of not guilty
following a trial means that the State has failed to prove all
of the elements of the charged crime beyond a reasonable
doubt. See, e. g.,State v. Messiah, 538 So. 2d 175, 180 (La.
1988) (citing In re Winship, 397 U.S. 358 (1970)); cf. La.
Code Crim. Proc. Ann., Art. 804(A)(1) (West 1969). A
verdict of not guilty by reason of insanity, in contrast,
means that the defendant committed the crime, but established that he was "incapable of distinguishing between
right and wrong" with respect to his criminal conduct. La.
Rev. Stat. Ann. § 14.14 (West 1986). Insanity, in other
words, is an affirmative defense that does not negate the
State's proof, but merely "exempt[s the defendant] from
criminal responsibility." Ibid. As the Louisiana Supreme
Court has summarized: "The State's traditional burden of
proof is to establish beyond a reasonable doubt all necessary elements of the offense. Once this rigorous burden of
proof has been met, it having been shown that defendant
has committed a crime, the defendant . . . bear[s] the
burden of establishing his defense of insanity in order to
escape punishment." State v. Marmillion, 339 So. 2d 788,
796 (La. 1976) (emphasis added). See also State v.
Surrency, 88 So. 240, 244 (La. 1921).

Louisiana law provides a procedure for a judge to render
a verdict of not guilty by reason of insanity upon a plea
without a trial. See La. Code Crim. Proc. Ann., Art. 558.1
(West Supp. 1991). The trial court apparently relied on this
procedure when it committed Foucha. See 563 So. 2d 1138,1139, n. 3 (La. 1990).
[n.1]
After ordering two experts to
examine Foucha, the trial court issued the following
judgment:

"After considering the law and the evidence adduced
in this matter, the Court finds that the accused, Terry
Foucha, is unable to appreciate the usual, natural and
probable consequences of his acts; that he is unable to
distinguish right from wrong; that he is a menace to
himself and to others; and that he was insane at the
time of the commission of the above crimes and that he
is presently insane." App. 6.

After adjudicating a defendant not guilty by reason of
insanity, a trial court must hold a hearing on the issue of
dangerousness. The law specifies that "[i]f the court
determines that the defendant cannot be released without
a danger to others or to himself, it shall order him committed to . . . [a] mental institution." La. Code Crim. Proc.
Ann., Art. 654 (West Supp. 1991).
[n.2]
" `Dangerous to others'means the condition of a person whose behavior or significant threats support a reasonable expectation that there is
a substantial risk that he will inflict physical harm upon
another person in the near future." La. Rev. Stat. Ann.
§ 28:2(3) (West 1986) (emphasis added). " `Dangerous to self'
means the condition of a person whose behavior, significant
threats or inaction supports a reasonable expectation that
there is a substantial risk that he will inflict physical or
severe emotional harm upon his own person." § 28:2(4).

After holding the requisite hearings, the trial court in
this case ordered Foucha committed to the Feliciana
Forensic Facility. After his commitment, Foucha was
entitled, upon request, to another hearing six months later
and at yearly intervals after that. See La. Code Crim. Proc.
Ann., Art. 655(B) (West Supp. 1991).
[n.3]
In addition, Louisiana law provides that a release hearing must be held upon
recommendation by the superintendent of a mental institution. See Art. 655(A).
[n.4]
In early 1988, Feliciana's superintendent recommended that Foucha be released, and a three doctor panel met to review the case. On March 21, 1988,
the panel issued a report pursuant to Art. 656.
[n.5]
The panel
concluded that "there is no evidence of mental illness."
App. 10. In fact, the panel stated that there was "never any
evidence of mental illness or disease since admission." Ibid.
(emphasis added). Although the panel did not discuss
whether Foucha was dangerous, it recommended to the trial
court that he be conditionally released.

As a result of these recommendations, the trial court
scheduled a hearing to determine whether Foucha should
be released. Under La. Code Crim. Proc. Ann., Art. 657(West Supp. 1991),
[n.6]
Foucha had the burden at this hearing
to prove that he could be released without danger to others
or to himself. The court appointed two experts (the same
doctors who had examined Foucha at the time of his
original commitment) to evaluate his dangerousness. These
doctors concluded that Foucha "is presently in remission
from mental illness," but said that they could not "certify
that he would not constitute a menace to himself or to
others if released." App. 12. On November 29, 1988, the
trial court held the hearing, at which Foucha was represented by counsel. The court concluded that Foucha "is a
danger to himself, and to others," id., at 24, and ordered
that he be returned to Feliciana.
[n.7]

The Court today concludes that Louisiana has denied
Foucha both procedural and substantive due process. In myview, each of these conclusions is wrong. I shall discuss
them in turn.

What the Court styles a "procedural" due process analysis
is in reality an equal protection analysis. The Court first
asserts (contrary to state law) that Foucha cannot be held
as an insanity acquittee once he "becomes" sane. Ante, at
6-7. That being the case, he is entitled to the same treatment as civil committees. "[I]f Foucha can no longer be
held as an insanity acquittee," the Court says, "he is
entitled to constitutionally adequate procedures [those
afforded in civil commitment proceedings] to establish the
grounds for his confinement." Ante, at 7 (emphasis added).
This, of course, is an equal protection argument (there
being no rational distinction between A and B, the State
must treat them the same); the Court does not even pretend
to examine the fairness of the release procedures the State
has provided.

I cannot agree with the Court's conclusion because I
believe that there is a real and legitimate distinction
between insanity acquittees and civil committees that
justifies procedural disparities. Unlike civil committees,
who have not been found to have harmed society, insanity
acquittees have been found in a judicial proceeding to have
committed a criminal act.

That distinction provided the ratio decidendi for our most
relevant precedent, Jones v. United States, 463 U.S. 354
(1983). That case involved a man who had been automatically committed to a mental institution after being acquitted of a crime by reason of insanity in the District of
Columbia (i. e., he had not been given the procedures
afforded to civil committees). We rejected both of his
procedural due process challenges to his commitment.
First, we held that an insanity acquittal justified automatic
commitment of the acquittee (even though he mightpresently be sane), because Congress was entitled to decide
that the verdict provided a reasonable basis for inferring
dangerousness and insanity at the time of commitment.
Id., at 366. The Government's interest in avoiding a de
novo commitment hearing following every insanity acquittal, we said, outweighed the acquittee's interest in avoiding
unjustified institutionalization. Ibid. Second, we held that
the Constitution did not require, as a predicate for the
indefinite commitment of insanity acquittees, proof of
insanity by "clear and convincing" evidence, as required for
civil committees by Addington v. Texas, 441 U.S. 418
(1979). There are, we recognized, "important differences
between the class of potential civil commitment candidates
and the class of insanity acquittees that justify differing
standards of proof." Jones, 463 U. S., at 367. In sharp
contrast to a civil committee, an insanity acquittee is
institutionalized only where "the acquittee himself advances
insanity as a defense and proves that his criminal act was
a product of his mental illness," and thus "there is good
reason for diminished concern as to the risk of error." Ibid.
(emphasis in original). "More important, the proof that he
committed a criminal act . . . eliminates the risk that he is
being committed for mere `idiosyncratic behavior.' " Ibid.
Thus, we concluded, the preponderance of the evidence
standard comports with due process for commitment of
insanity acquittees. Id., at 368. "[I]nsanity acquittees
constitute a special class that should be treated differently
from other candidates for commitment." Id., at 370.

The Court today attempts to circumvent Jones by
declaring that a State's interest in treating insanity
acquittees differently from civil committees evaporates the
instant an acquittee "becomes sane." I do not agree. As an
initial matter, I believe that it is unwise, given our present
understanding of the human mind, to suggest that a
determination that a person has "regained sanity" is
precise. "Psychiatry is not . . . an exact science, and
psychiatrists disagree widely and frequently on whatconstitutes mental illness." Ake v. Oklahoma, 470 U.S. 68, 81 (1985). Indeed,

"[w]e have recognized repeatedly the `uncertainty of
diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be
said about the present state of knowledge and therapy
regarding mental disease is that science has not
reached finality of judgment.' The lesson we have
drawn is not that government may not act in the face
of this uncertainty, but rather that courts should pay
particular deference to reasonable legislative judgments." Jones, supra, at 365, n. 13 (quoting Greenwood
v. United States, 350 U.S. 366, 375 (1956); citations
omitted).

In this very case, the panel that evaluated Foucha in 1988
concluded that there was "never any evidence of mental
illness or disease since admission," App. 10; the trial court,
of course, concluded that Foucha was "presently insane,"
Id., at 6, at the time it accepted his plea and sent him to
Feliciana.

The distinction between civil committees and insanity
acquittees, after all, turns not on considerations of present
sanity, but instead on the fact that the latter have "already
unhappily manifested the reality of anti social conduct,"
Dixon v. Jacobs, 138 U. S. App. D. C. 319, 334, 427 F. 2d
589, 604 (1970) (Leventhal, J., concurring). "[T]he prior
anti social conduct of an insanity acquittee justifies treating
such a person differently from ones otherwise civilly committed for purposes of deciding whether the patient should
be released." Powell v. Florida, 579 F. 2d 324, 333 (CA5
1978) (emphasis added); see also United States v. Ecker, 177
U. S. App. D. C. 31, 50, 543 F. 2d 178, 197 (1976), cert.
denied, 429 U.S. 1063 (1977). While a State may renounce
a punitive interest by offering an insanity defense, it does
not follow that, once the acquittee's sanity is "restored," the
State is required to ignore his criminal act, and to renounceall interest in protecting society from him. "The state has
a substantial interest in avoiding premature release of
insanity acquittees, who have committed acts constituting
felonies and have been declared dangerous to society."
Hickey v. Morris, 722 F. 2d 543, 548 (CA9 1983).

Furthermore, the Federal Constitution does not require
a State to "ignore the danger of `calculated abuse of the
insanity defense.' " Warren v. Harvey, 632 F. 2d 925, 932
(CA2 1980) (quoting United States v. Brown, 155 U. S. App.
D. C. 402, 407, 478 F. 2d 606, 611 (1973)). A State that
decides to offer its criminal defendants an insanity defense,
which the defendant himself is given the choice of invoking,
is surely allowed to attach to that defense certain consequences that prevent abuse. Cf. Lynch v. Overholser, 369 U.S. 705, 715 (1962) ("Congress might have considered it
appropriate to provide compulsory commitment for those
who successfully invoke an insanity defense in order to
discourage false pleas of insanity").

"In effect, the defendant, by raising the defense of
insanity--and he alone can raise it--postpones a determination of his present mental health and acknowledges the right of the state, upon accepting his plea, to
detain him for diagnosis, care, and custody in a mental
institution until certain specified conditions are met.
. . . [C]ommitment via the criminal process . . . thus is
more akin to `voluntary' than `involuntary' civil commitment." Goldstein & Katz, Dangerousness and Mental
Illness, Some Observations on the Decision to Release
Persons Acquitted by Reason of Insanity, 70 Yale L. J.
225, 230 (1960) (footnote omitted).

A State may reasonably decide that the integrity of an
insanity acquittal scheme requires the continued commitment of insanity acquittees who remain dangerous. Surely,
the citizenry would not long tolerate the insanity defense if
a serial killer who convinces a jury that he is not guilty by
reason of insanity is returned to the streets immediatelyafter trial by convincing a different factfinder that he is not
in fact insane.

As the American Law Institute has explained:

"It seemed preferable to the Institute to make dangerousness the criterion for continued custody, rather than
to provide that the committed person may be discharged or released when restored to sanity as defined
by the mental hygiene laws. Although his mental
disease may have greatly improved, [an insanity
acquittee] may still be dangerous because of factors in
his personality and background other than mental
disease. Also, such a standard provides a means for
the control of the occasional defendant who may be
quite dangerous but who successfully feigned mental
disease to gain an acquittal." Model Penal Code § 4.08,
Comment 3, pp. 259-260 (1985).
[n.8]

That this is a reasonable legislative judgment is underscored by the fact that it has been made by no fewer than
11 state legislatures, in addition to Louisiana's, which
expressly provide that insanity acquittees shall not be
released as long as they are dangerous, regardless of sanity.
[n.9]

The Court suggests an alternative "procedural" due
process theory that is, if anything, even less persuasive
than its principal theory. "[K]eeping Foucha against his
will in a mental institution is improper absent a determination in civil commitment proceedings of current mental
illness and dangerousness." Ante, at 7 (emphasis added).
The Court cites Vitek v. Jones, 445 U.S. 480 (1980), as
support. There are two problems with this theory. First,
it is illogical: Louisiana cannot possibly extend Foucha's
incarceration by adding the procedures afforded to civil
committees, since it is impossible to civilly commit someone
who is not presently mentally ill. Second, the theory is not
supported by Vitek. Stigmatization (our concern in Vitek)
is simply not a relevant consideration where insanity
acquittees are involved. As we explained in Jones: "A
criminal defendant who successfully raises the insanity
defense necessarily is stigmatized by the verdict itself, and
thus the commitment causes little additional harm in this
respect." 463 U. S., at 367, n. 16; see also Warren v.
Harvey, 632 F. 2d, at 931-932. (This is in sharp contrast to
situations involving civil committees. See Addington, 441
U. S., at 425-426; Vitek, supra, at 492-494.) It is implausible, in my view, that a person who chooses to plead not
guilty by reason of insanity and then spends several years
in a mental institution becomes unconstitutionally stigmatized by continued confinement in the institution after
"regaining" sanity.

In my view, there was no procedural due process violation
in this case. Articles 654, 655, and 657 of the Louisiana
Code of Criminal Procedure, as noted above, afford insanity
acquittees the opportunity to obtain release by demonstrating at regular intervals that they no longer pose a threat to
society. These provisions also afford judicial review of suchdeterminations. Pursuant to these procedures, and based
upon testimony of experts, the Louisiana courts determined
not to release Foucha at this time because the evidence did
not show that he ceased to be dangerous. Throughout these
proceedings, Foucha was represented by state appointed
counsel. I see no plausible argument that these procedures
denied Foucha a fair hearing on the issue involved or that
Foucha needed additional procedural protections.
[n.10]
See
Mathews v. Eldridge, 424 U.S. 319 (1976); Patterson v. New
York, 432 U.S. 197 (1977); cf. Addington, supra, at
427-432; Jones, supra, at 363-368; Benham v. Ledbetter,
785 F. 2d 1480, 1486-1488 (CA11 1986).
[n.11]

The Court next concludes that Louisiana's statutory
scheme must fall because it violates Foucha's substantive
due process rights. Ante, at 8-12. I disagree. Until today,
I had thought that the analytical framework for evaluating
substantive due process claims was relatively straightforward. Certain substantive rights we have recognized as
"fundamental"; legislation trenching upon these is subjected
to "strict scrutiny," and generally will be invalidated unlessthe State demonstrates a compelling interest and narrow
tailoring. Such searching judicial review of state legislation, however, is the exception, not the rule, in our democratic and federal system; we have consistently emphasized
that "the Court has no license to invalidate legislation
which it thinks merely arbitrary or unreasonable." Regents
of University of Michigan v. Ewing, 474 U.S. 214, 226
(1985) (internal quotation omitted). Except in the unusual
case where a fundamental right is infringed, then, federal
judicial scrutiny of the substance of state legislation under
the Due Process Clause of the Fourteenth Amendment is
not exacting. See, e. g., Bowers v. Hardwick, 478 U.S. 186,
191-196 (1986).

In striking down Louisiana's scheme as a violation of
substantive rights guaranteed by the Due Process Clause,
the Court today ignores this well established analytical
framework. First, the Court never explains if we are
dealing here with a fundamental right, and, if so, what
right. Second, the Court never discloses what standard of
review applies. Indeed, the Court's opinion is contradictory
on both these critical points.

As to the first point: the Court begins its substantive due
process analysis by invoking the substantive right to "[f]reedom from bodily restraint." Ante, at 8. Its discussion then
proceeds as if the problem here is that Foucha, an insanity
acquittee, continues to be confined after recovering his
sanity, ante, at 8-10; thus, the Court contrasts this case to
United States v. Salerno, 481 U.S. 739 (1987), a case involving the confinement of pretrial detainees. But then,
abruptly, the Court shifts liberty interests. The liberty
interest at stake here, we are told, is not a liberty interest
in being free "from bodily restraint," but instead the more
specific (and heretofore unknown) "liberty interest under
the Constitution in being freed from [1] indefinite confinement [2] in a mental facility." Ante, at 10 (emphasis added).
See also ante, at 1 (O'Connor, J., concurring in part and
concurring in judgment). So the problem in this case isapparently not that Louisiana continues to confine insanity
acquittees who have "become" sane (although earlier in the
opinion the Court interprets our decision in Jones as having
held that such confinement is unconstitutional, see ante, at
6), but that under Louisiana law, "sane" insanity acquittees
may be held "indefinitely" "in a mental facility."

As to the second point: "[a] dispute regarding the appropriate standard of review may strike some as a lawyers'
quibble over words, but it is not." Metro Broadcasting, Inc.
v. FCC, 497 U. S. ----, ---- (1990) (O'Connor, J., dissenting). The standard of review determines when the Due
Process Clause of the Fourteenth Amendment will override
a State's substantive policy choices, as reflected in its laws.
The Court initially says that "[d]ue process requires that
the nature of commitment bear some reasonable relation to
the purpose for which the individual is committed." Ante,
at 7 (emphasis added). Later in its opinion, however, the
Court states that the Louisiana scheme violates substantive
due process not because it is not "reasonably related" to the
State's purposes, but instead because its detention provisions are not "sharply focused" or "carefully limited," in
contrast to the scheme we upheld in Salerno. Ante, at 10.
Does that mean that the same standard of review applies
here that we applied in Salerno, and, if so, what is that
standard? The Court quite pointedly avoids answering
these questions. Similarly, Justice O'Connor does not
reveal exactly what standard of review she believes applicable, but appears to advocate a heightened standard heretofore unknown in our caselaw. Ante, at 2 ("It might therefore be permissible for Louisiana to confine an insanity
acquittee who has regained sanity if . . . the nature and
duration of detention were tailored to reflect pressing public
safety concerns related to the acquittee's continuing
dangerousness") (emphasis added).

To the extent the Court invalidates the Louisiana scheme
on the ground that it violates some general substantive due
process right to "freedom from bodily restraint" that triggers strict scrutiny, it is wrong--and dangerously so. To
the extent the Court suggests that Louisiana has violated
some more limited right to freedom from indefinite commitment in a mental facility (a right, by the way, never
asserted by Foucha in this or any other court) that triggers
some unknown standard of review, it is also wrong. I shall
discuss these two possibilities in turn.

I fully agree with the Court, ante, at 8, and with Justice
Kennedy,ante, at 1, that freedom from involuntary confinement is at the heart of the "liberty" protected by the Due
Process Clause. But a liberty interest per se is not the
same thing as a fundamental right. Whatever the exact
scope of the fundamental right to "freedom from bodily
restraint" recognized by our cases,
[n.12]
it certainly cannot be
defined at the exceedingly great level of generality the
Court suggests today. There is simply no basis in our
society's history or in the precedents of this Court to
support the existence of a sweeping, general fundamental
right to "freedom from bodily restraint" applicable to all
persons in all contexts. If convicted prisoners could claim
such a right, for example, we would subject all prisonsentences to strict scrutiny. This we have consistently
refused to do. See, e. g.,Chapman v. United States, 500
U. S. ----, ---- (1991).
[n.13]

The critical question here, then, is whether insanity
acquittees have a fundamental right to "freedom from bodily
restraint" that triggers strict scrutiny of their confinement.
Neither Foucha nor the Court provides any evidence that
our society has ever recognized any such right. To the
contrary, historical evidence shows that many States have
long provided for the continued institutionalization of
insanity acquittees who remain dangerous. See, e. g., H.
Weihofen, Insanity as a Defense in Criminal Law 294-332
(1933); A. Goldstein, The Insanity Defense 148-149 (1967).

Moreover, this Court has never applied strict scrutiny to
the substance of state laws involving involuntary confinement of the mentally ill, much less to laws involving the
confinement of insanity acquittees. To the contrary, until
today we have subjected the substance of such laws only to
very deferential review. Thus, in Jackson v. Indiana, 406 U.S. 715, 738 (1972), we held that Indiana's provisions for
the indefinite institutionalization of incompetent defendants
violated substantive due process because they did not bear
any "reasonable" relation to the purpose for which the
defendant was committed. Similarly, in O'Connor v.Donaldson, 422 U.S. 563 (1975), we held that the confinement of a nondangerous mentally ill person was unconstitutional not because the State failed to show a compelling
interest and narrow tailoring, but because the State had no
legitimate interest whatsoever to justify such confinement.
See id., at 575-576. See also id., at 580 (Burger, C. J.,
concurring) ("Commitment must be justified on the basis of
a legitimate state interest, and the reasons for committing
a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease
when those reasons no longer exist.") (emphasis added).

Similarly, in Jones, we held (in addition to the procedural
due process holdings described above) that there was no
substantive due process bar to holding an insanity acquittee
beyond the period for which he could have been incarcerated if convicted. We began by explaining the standard for
our analysis: "The Due Process Clause `requires that the
nature and duration of commitment bear some reasonable
relation to the purpose for which the individual is committed.' " 463 U. S., at 368 (emphasis added) (quoting Jackson,
supra, at 738). We then held that "[i]n light of the congressional purposes underlying commitment of insanity acquittees [in the District of Columbia,]" which we identified as
treatment of the insanity acquittee's mental illness and
protection of the acquittee and society, "petitioner clearly
errs in contending that an acquittee's hypothetical maximum sentence provides the constitutional limit for his
commitment." 463 U. S., at 368 (emphasis added). Given
that the commitment law was reasonably related to Congress' purposes, this Court had no basis for invalidating it
as a matter of substantive due process.

It is simply wrong for the Court to assert today that we
"held" in Jones that " `the committed acquittee is entitled to
release when he has recovered his sanity or is no longer
dangerous.' " Ante, at 6 (quoting Jones, 463 U. S., at368).
[n.14]
We specifically noted in Jones that no issue regarding the standards for the release of insanity acquittees
was before us. Id., at 363, n. 11. The question we were
answering in the part of Jones from which the Court quotes
was whether it is permissible to hold an insanity acquittee
for a period longer than he could have been incarcerated if
convicted, not whether it is permissible to hold him once he
becomes "sane." As noted above, our substantive due
process analysis in Jones was straightforward: did the
means chosen by Congress (commitment of insanity acquittees until they have recovered their sanity or are no longer
dangerous) reasonably fit Congress' ends (treatment of the
acquittee's mental illness and protection of society from his
dangerousness)?
[n.15]

In its arguments before this Court, Louisiana chose to
place primary reliance on our decision in United States v.
Salerno, 481 U.S. 739 (1987), in which we upheld provisions of the Bail Reform Act of 1984 that allowed limited
pretrial detention of criminal suspects. That case, as the
Court notes, ante, at 10-11, is readily distinguishable. Insanity acquittees, in sharp and obvious contrast to
pretrial detainees, have had their day in court. Although
they have not been convicted of crimes, neither have they
been exonerated, as they would have been upon a determination of "not guilty" simpliciter. Insanity acquittees thus
stand in a fundamentally different position from persons
who have not been adjudicated to have committed criminal
acts. That is what distinguishes this case (and what
distinguished Jones) from Salerno and Jackson v. Indiana,
406 U.S. 715 (1972). In Jackson, as in Salerno, the State
had not proven beyond a reasonable doubt that the accused
had committed criminal acts or otherwise was dangerous.
See Jones, supra, at 364, n. 12. The Court disregards this
critical distinction, and apparently deems applicable the
same scrutiny to pretrial detainees as to persons determined in a judicial proceeding to have committed a criminal
act.
[n.16]

If the Court indeed means to suggest that all restrictions
on "freedom from bodily restraint" are subject to strict
scrutiny, it has (at a minimum) wrought a revolution in thetreatment of the mentally ill. Civil commitment as we
know it would almost certainly be unconstitutional; only in
the rarest of circumstances will a State be able to show a
"compelling interest," and one that can be served in no
other way, in involuntarily institutionalizing a person. All
procedures involving the confinement of insanity acquittees
and civil committees would require revamping to meet strict
scrutiny. Thus, to take one obvious example, the automatic
commitment of insanity acquittees that we expressly upheld
in Jones would be clearly unconstitutional, since it is
inconceivable that such commitment of persons who may
well presently be sane and nondangerous could survive
strict scrutiny. (In Jones, of course, we applied no such
scrutiny; we upheld the practice not because it was justified
by a compelling interest, but because it was based on
reasonable legislative inferences about continuing insanity
and dangerousness.)

As explained above, the Court's opinion is profoundly
ambiguous on the central question in this case: Must the
State of Louisiana release Terry Foucha now that he has
"regained" his sanity? In other words, is the defect in
Louisiana's statutory scheme that it provides for the
confinement of insanity acquittees who have recovered their
sanity, or instead that it allows the State to confine sane
insanity acquittees (1) indefinitely (2) in a mental facility?
To the extent the Court suggests the former, I have already
explained why it is wrong. I turn now to the latter possibility, which also is mistaken.

To begin with, I think it is somewhat misleading to
describe Louisiana's scheme as providing for the "indefinite"
commitment of insanity acquittees. As explained above,
insanity acquittees are entitled to a release hearing every
year at their request, and at any time at the request of a
facility superintendent. Like the District of Columbia
statute at issue in Jones, then, Louisiana's statute providesfor "indefinite" commitment only to the extent that an
acquittee is unable to satisfy the substantive standards for
release. If the Constitution did not require a cap on the
acquittee's confinement in Jones, why does it require one
here? The Court and Justice O'Connor have no basis for
suggesting that either this Court or the society of which it
is a part has recognized some general fundamental right to
"freedom from indefinite commitment." If that were the
case, of course, Jones would have involved strict scrutiny
and is wrongly decided.

Furthermore, any concerns about "indefinite" commitment here are entirely hypothetical and speculative.
Foucha has been confined for eight years. Had he been
convicted of the crimes with which he was charged, he could
have been incarcerated for 32 years. See La. Rev. Stat.
Ann. §§ 14.60 & 14.94 (West 1986). Thus I find quite odd
Justice O'Connor's suggestion, ante, at 4, that this case
might be different had Louisiana, like the State of Washington, limited confinement to the period for which a
defendant might have been imprisoned if convicted. Foucha, of course, would be in precisely the same position
today--and for the next 24 years--had the Louisiana
statute included such a cap. Thus, the Court apparently
finds fault with the Louisiana statute not because it has
been applied to Foucha in an unconstitutional manner, but
because the Court can imagine it being applied to someoneelse in an unconstitutional manner. That goes against the
first principles of our jurisprudence. See, e. g.,Salerno, 481
U. S., at 745 ("The fact that [a detention statute] might
operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid,
since we have not recognized an `overbreadth' doctrine
outside the limited context of the First Amendment").
[n.17]

Finally, I see no basis for holding that the Due Process
Clause per se prohibits a State from continuing to confine
in a "mental institution"--the federal constitutional
definition of which remains unclear--an insanity acquittee
who has recovered his sanity. As noted above, many States
have long provided for the continued detention of insanity
acquittees who remain dangerous. Neither Foucha nor the
Court present any evidence that these States have traditionally transferred such persons from mental institutions
to other detention facilities. Therefore, there is simply no
basis for this Court to recognize a "fundamental right" for
a sane insanity acquittee to be transferred out of a mental
facility. "In an attempt to limit and guide interpretation of
the [Due Process] Clause, we have insisted not merely that
the interest denominated as a `liberty' be `fundamental' (a
concept that, in isolation, is hard to objectify), but also that
it be an interest traditionally protected by our society."
Michael H. v. Gerald D.,491 U.S. 110, 122 (1989) (plurality opinion).

Removing sane insanity acquittees from mental institutions may make eminent sense as a policy matter, but the
Due Process Clause does not require the States to conform
to the policy preferences of federal judges. "The Court is
most vulnerable and comes nearest to illegitimacy when it
deals with judge made constitutional law having little or no
cognizable roots in the language or design of the Constitution." Bowers, 478 U. S., at 194. I have no idea what
facilities the Court or Justice O'Connor believe the Due
Process Clause mandates for the confinement of sane but dangerous insanity acquittees. Presumably prisons will not
do, since imprisonment is generally regarded as "punishment." May a State designate a wing of a mental institution or prison for sane insanity acquittees? May a State
mix them with other detainees? Neither the Constitutionnor our society's traditions provides any answer to these
questions.
[n.18]

"So called `substantive due process' prevents the government from engaging in conduct that `shocks the conscience,'
Rochin v. California, 342 U.S. 165, 172 (1952), or interferes
with rights `implicit in the concept of ordered liberty,' Palko
v. Connecticut, 302 U.S. 319, 325-326 (1937)." Salerno,
supra, at 746. The legislative scheme the Court invalidates
today is, at the very least, substantively reasonable. With
all due respect, I do not remotely think it can be said that
the laws in question "offen[d] some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Therefore, in my view, this Court is
not entitled, as a matter of substantive due process, to
strike them down.

I respectfully dissent.

Notes

1
Under La. Code Crim. Proc. Ann., Art. 558.1 (West Supp. 1991), a
criminal defendant apparently concedes that he committed the crime,
and advances his insanity as the sole ground on which to avoid
conviction. Foucha does not challenge the procedures whereby he was
adjudicated not guilty by reason of insanity; nor does he deny that he
committed the crimes with which he was charged.

"When a defendant is found not guilty by reason of insanity in any
[noncapital] felony case, the court shall remand him to the parish jail or
to a private mental institution approved by the court and shall promptly
hold a contradictory hearing at which the defendant shall have the
burden of proof, to determine whether the defendant can be discharged
or can be released on probation, without danger to others or to himself.
If the court determines that the defendant cannot be released without
danger to others or to himself, it shall order him committed to a proper
state mental institution or to a private mental institution approved by
the court for custody, care, and treatment. If the court determines that
the defendant can be discharged or released on probation without danger
to others or to himself, the court shall either order his discharge, or orderhis release on probation subject to specified conditions for a fixed or an
indeterminate period. The court shall assign written findings of fact and
conclusions of law; however, the assignment of reasons shall not delay
the implementation of judgment."

"A person committed pursuant to Article 654 may make application to
the review panel for discharge or for release on probation. Such
application by a committed person may not be filed until the committed
person has been confined for a period of at least six months after the
original commitment. If the review panel recommends to the court that
the person be discharged, conditionally or unconditionally, or placed on
probation, the court shall conduct a hearing following notice to the
district attorney. If the recommendation of the review panel or the court
is adverse, the applicant shall not be permitted to file another application
until one year has elapsed from the date of determination."

"When the superintendent of a mental institution is of the opinion that
a person committed pursuant to Article 654 can be discharged or can be
released on probation, without danger to others or to himself, he shall
recommend the discharge or release of the person in a report to a reviewpanel comprised of the person's treating physician, the clinical director
of the facility to which the person is committed, and a physician or
psychologist who served on the sanity commission which recommended
commitment of the person. If any member of the panel is unable to
serve, a physician or a psychologist engaged in the practice of clinical or
counseling psychology with at least three years' experience in the field
of mental health shall be appointed by the remaining members. The
panel shall review all reports received promptly. After review, the panel
shall make a recommendation to the court by which the person was
committed as to the person's mental condition and whether he can be
discharged, conditionally or unconditionally, or placed on probation,
without being a danger to others or himself. If the review panel
recommends to the court that the person be discharged, conditionally or
unconditionally, or placed on probation, the court shall conduct a
contradictory hearing following notice to the district attorney."

"A. Upon receipt of the superintendent's report, filed in conformity
with Article 655, the review panel may examine the committed person
and report, to the court promptly, whether he can be safely discharged,
conditionally or unconditionally, or be safely released on probation,
without danger to others or to himself.

"B. The committed person or the district attorney may also retain a
physician to examine the committed person for the same purpose. The
physician's report shall be filed with the court."

"After considering the report or reports filed pursuant to Articles 655
and 656, the court may either continue the commitment or hold a
contradictory hearing to determine whether the committed person can be
discharged, or can be released on probation, without danger to others or
to himself. At the hearing the burden shall be upon the committed
person to prove that he can be discharged, or can be released on
probation, without danger to others or to himself. After the hearing, and
upon filing written findings of fact and conclusions of law, the court may
order the committed person discharged, released on probation subject to
specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution. Notice to the counsel for the
committed person and the district attorney of the contradictory hearing
shall be given at least thirty days prior to the hearing."

7
The Louisiana Supreme Court concluded that the trial court did not
abuse its discretion in finding that Foucha had failed to prove that he
could be released without danger to others or to himself under La. Code
Crim. Proc. Ann., Art. 657 (West Supp. 1991). See 563 So. 2d 1138, 1141
(1990). That issue is not now before us.

8
The relevant provision of the Model Penal Code, strikingly similar to
Article 657 of the Louisiana Code of Criminal Procedure, see supra, n. 6,
provides in part as follows:

"If the Court is satisfied by the report filed pursuant to Subsection (2) of
this Section and such testimony of the reporting psychiatrists as the
Court deems necessary that the committed person may be discharged or
released on condition without danger to himself or others, the Court shall
order his discharge or his release on such conditions as the Court
determines to be necessary. If the Court is not so satisfied, it shall
promptly order a hearing to determine whether such person may safely
be discharged or released. Any such hearing shall be deemed a civil
proceeding and the burden shall be upon the committed person to prove
that he may safely be discharged or released." Model Penal Code § 4.08
(3) (Proposed Official Draft 1962).

9
See Cal. Penal Code Ann. § 1026.2(e) (West Supp. 1992) (insanity
acquittee not entitled to release until court determines that he "will notbe a danger to the health and safety of others, including himself"); Del.
Code Ann., Tit. 11, § 403(b) (1987) (insanity acquittee shall be kept
institutionalized until court "is satisfied that the public safety will not be
endangered by his release"); Haw. Rev. Stat. § 704-415 (1985) (insanity
acquittee not entitled to release until court satisfied that acquittee "may
safely be discharged or released"); Iowa Rule Crim. Proc. 21.8(e) (insanity
acquittee not entitled to release as long as "court finds that continued
custody and treatment are necessary to protect the safety of the
[acquittee's] self or others"); Kan. Stat. Ann. § 22-3428(3) (Supp. 1990)
(insanity acquittee not entitled to release until "the court finds by clear
and convincing evidence that [he] will not be likely to cause harm to self
or others if released or discharged"); Mont. Code Ann. § 46-14-301(3)
(1991) (insanity acquittee not entitled to release until he proves that he
"may safely be released"); N. J. Stat. Ann. § 2C:4-9 (West 1982) (insanity
acquittee not entitled to release or discharge until court satisfied that he
is not "danger to himself or others"); N. C. Gen. Stat. § 122C 268.1(i)
(Supp. 1991) (insanity acquittee not entitled to release until he "prove[s]
by a preponderance of the evidence that he is no longer dangerous to
others"); Va. Code § 19.2-181(3) (1990) (insanity acquittee not entitled to
release until he proves "that he is not insane or mentally retarded and
that his discharge would not be dangerous to the public peace and safety
or to himself" (emphasis added)); Wash. Rev. Code § 10.77.200(2) (1990)
("The burden of proof [at a release hearing] shall be upon the [insanity
acquittee] to show by a preponderance of the evidence that [he] may be
finally discharged without substantial danger to other persons, and
without presenting a substantial likelihood of committing felonious acts
jeopardizing public safety or security"); Wis. Stat. § 971.17(4) (Supp.
1991) (insanity acquittee not entitled to release where court "finds by
clear and convincing evidence that the [acquittee] would pose a significant risk of bodily harm to himself or herself or to others of serious
property damage if conditionally released").

The Court and the concurrence dispute this list of statutes. Ante, at
13 n. 6; ante, at 3-4 (O'Connor, J., concurring in part and concurring in
judgment). They note that two of the States have enacted new laws, not
yet effective, modifying their current absolute prohibitions on the release
of dangerous insanity acquittees; that courts in two other States have
apparently held that mental illness is a prerequisite to confinement; and
that three of the States place caps of some sort on the duration of the
confinement of insanity acquittees. Those criticisms miss my point. I
cite the 11 state statutes above only to show that the legislative
judgments underlying Louisiana's scheme are far from unique or
freakish, and that there is no well established practice in our society,either past or present, of automatically releasing sane but dangerous
insanity acquittees.

10
Foucha has not argued that the State's procedures, as applied, are
a sham. This would be a different case if Foucha had established that
the statutory mechanisms for release were nothing more than window dressing, and that the State in fact confined insanity acquittees indefinitely without meaningful opportunity for review and release.

11
As explained above, the Court's "procedural" due process analysis is
essentially an equal protection analysis: the Court first disregards the
differences between "sane" insanity acquittees and civil committees, and
then simply asserts that Louisiana cannot deny Foucha the procedures
it gives civil committees. A plurality repeats this analysis in its
cumulative equal protection section. See ante, at 12-13. As explained
above, I believe that there are legitimate differences between civil
committees and insanity acquittees, even after the latter have "become"
sane. Therefore, in my view, Louisiana has not denied Foucha equal
protection of the laws. Cf. Jones v. United States,463 U.S. 354, at 362,
n. 10 (1983).

12
The Court cites only Youngberg v. Romeo, 457 U.S. 307, 316 (1982),
in support of its assertion that "[f]reedom from bodily restraint has
always been at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action," ante, at 8. What "freedom
from bodily restraint" meant in that case, however, is completely different from what the Court uses the phrase to mean here. Youngberg
involved the substantive due process rights of an institutionalized,
mentally retarded patient who had been restrained by shackles placed on
his arms for portions of each day. See 457 U. S., at 310, and n. 4. What
the Court meant by "freedom from bodily restraint," then, was quite
literally freedom not to be physically strapped to a bed. That case in no
way established the broad "freedom from bodily restraint"--apparently
meaning freedom from all involuntary confinement--that the Court
discusses today.

13
Unless the Court wishes to overturn this line of cases, its substantive
due process analysis must rest entirely on the fact that an insanity
acquittee has not been convicted of a crime. Conviction is, of course, a
significant event. But I am not sure that it deserves talismanic significance. Once a State proves beyond a reasonable doubt that an individual has committed a crime, it is, at a minimum, not obviously a
matter of Federal Constitutional concern whether the State proceeds to
label that individual "guilty," "guilty but insane," or "not guilty by reason
of insanity." A State may just as well decide to label its verdicts "A,"
"B," and "C." It is surely rather odd to have rules of Federal Constitutional law turn entirely upon the label chosen by a State. Cf. Railway
Express Agency, Inc. v. Virginia, 358 U.S. 434, 441 (1959) (constitutionality of state action should not turn on "magic words").

14
If this were really a "holding" of Jones, then I am at a loss to
understand Justice O'Connor's assertion that the Court today does not
hold "that Louisiana may never confine dangerous insanity acquittees
after they regain mental health." Ante, at 1. Either it is true that, as a
matter of substantive due process, an insanity acquittee is " `entitled to
release when he has recovered his sanity,' " ante, at 6 (quoting Jones, 463
U. S., at 368), or it is not. The Court apparently cannot make up its
mind.

15
As may be apparent from the discussion in text, we have not been
entirely precise as to the appropriate standard of review of legislation in
this area. Some of our cases (e. g., O'Connor) have used the language of
rationality review; others (e. g., Jackson) have used the language of
"reasonableness," which may imply a somewhat heightened standard;
still others (e. g., Jones) have used the language of both rationality and
reasonableness. What is clear from our cases is that the appropriate
scrutiny is highly deferential, not strict. We need not decide in this case
which precise standard is applicable, since the laws under attack here
are at the very least reasonable.

16
The Court asserts that the principles set forth in this dissent
necessarily apply not only to insanity acquittees, but also to convicted
prisoners. "The dissent's rationale for continuing to hold the insanity
acquittee would surely justify treating the convicted felon in the same
way, and, if put to it, it appears that the dissent would permit it." Ante,
at 12, n. 6. That is obviously not so. If Foucha had been convicted of the
crimes with which he was charged and sentenced to the statutory
maximum of 32 years in prison, the State would not be entitled to extend
his sentence at the end of that period. To do so would obviously violate
the prohibition on ex post-facto laws set forth in Art. I, § 10, cl. 1. But
Foucha was not sentenced to incarceration for any definite period of time;
to the contrary, he pleaded not guilty by reason of insanity and was
ordered institutionalized until he was able to meet the conditions
statutorily prescribed for his release. To acknowledge, as I do, that it is
constitutionally permissible for a State to provide for the continued
confinement of an insanity acquittee who remains dangerous is obviously
quite different than to assert that the State is allowed to confine anyone
who is dangerous for as long as it wishes.

17
I fully agree with Justice O'Connor, ante, at 3, that there would be
a serious question of rationality had Louisiana sought to institutionalize
a sane insanity acquittee for a period longer than he might have beenimprisoned if convicted. But that is simply not the case here.

18In particular circumstances, of course, it may be unconstitutional for
a State to confine in a mental institution a person who is no longer
insane. This would be a different case had Foucha challenged specific
conditions of confinement--for instance, being forced to share a cell with
an insane person, or being involuntarily treated after recovering his
sanity. But Foucha has alleged nothing of the sort--all we know is that
the State continues to confine him in a place called the Feliciana
Forensic Facility. It is by no means clear that such confinement is
invariably worse than, for example, confinement in a jail or other
detention center--for all we know, an institution may provide a quieter,
less violent atmosphere. I do not mean to suggest that that is the
case--my point is only that the issue cannot be resolved in the abstract.